CLAUDE V. FALKENHAN v. HONORABLE JOHN H. WISE (11/21/80)

filed: November 21, 1980.

CLAUDE V. FALKENHAN, ESQUIRE, ON BEHALF OF HIMSELF AND ALL MEMBERS OF THE BUTLER COUNTY BAR ASSOCIATIONv.HONORABLE JOHN H. WISE, PROTHONOTARY OF THE COURT OF COMMON PLEAS OF BUTLER COUNTY, PENNSYLVANIA. APPEAL OF CLAUDE V. FALKENHAN, ESQUIRE

No. 794 April Term. 1979 Appeal from the Order of the Court of Common Pleas of Butler County, No. A.D. 77-058, Book 22, Page 167, Class Action in Equity, July 23, 1979, Civil Division.

COUNSEL

Claude V. Falkenhan, Zelienople, for appellant.

Leo M. Stepanian, Butler, for Butler County Bar Ass'n, appellee.

Lee A. Montgomery, Butler, for Wise, appellee.

Price, Brosky and Montgomery, JJ. Price, J., concurs in the result.

Author: Per Curiam

[ 282 Pa. Super. Page 320]

Plaintiff, Claude V. Falkenhan, Esq., a member of the Butler County bar, has brought this action in equity on behalf of himself and all members of the Butler County Bar Association (hereinafter called "Association"), seeking to compel the defendant, Honorable John H. Wise, Prothonotary

[ 282 Pa. Super. Page 321]

of the Court of Common Pleas of Butler County, to comply with certain rules of civil procedure. Specifically, the rules in question are Pa.R.C.P. No. 236,*fn1 Pa.R.C.P. No. 1038(e),*fn2 Pa.R.C.P. No. 1517(b),*fn3 and Pa.R.C.P. No. 1519(c).*fn4

[ 282 Pa. Super. Page 322]

These rules concern the duty of the Prothonotary to give certain notices to litigants and their counsel. In addition, compliance by the Prothonotary with Pa.R.C.P. No. 1133(a)(1),*fn5 dealing with the appointment of masters in divorce actions, is also called into question by appellant.

Appellant filed his complaint on October 24, 1977. Appearance on behalf of appellee, John H. Wise, was entered on November 16, 1977 by attorney Lee A. Montgomery, a member of the Association. Appellant petitioned the lower court to disqualify attorney Montgomery from representing appellee, claiming that by virtue of being a member of the Association, the defense counsel was a member of the plaintiff class and could not represent the defendant. This petition was denied by the lower court, and appellant's appeal of this issue was quashed per curiam by this court.*fn6

Appellee filed preliminary objections demurring to the complaint (1) as failing to state a cause of action upon which relief could be granted, (2) claiming that there existed a remedy at law, and (3) moving to strike because of ...

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